UNITED STATES of America, Plaintiff-Appellee, v. Carl L. COMBS, Defendant-Appellant, 634 F.2d 1295

LOGAN, Circuit Judge. Carl L. Combs appeals from his conviction for violating the Federal Bank Robbery Act, 18 U.S.C. § 2113. The issues on appeal concern application of the Fifth Amendment’s prohibition against double jeopardy. The relevant facts are not in dispute. In November 1979 defendant was charged in two counts of a single indictment with violating 18 U.S.C. § 2113. Count I charged violation of § 2113(a) (bank robbery) and of § 2113(d) (assault while engaged in bank robbery). Count II charged violation of subsection (b) (bank larceny).

The charges arose out of a single incident in which Combs used a knife to threaten a bank officer and to take $3,657 from a bank in New Mexico. Defendant pleaded not guilty to both counts at his arraignment. In December 1979, prior to trial, he changed his plea on Count II to guilty. The court accepted the plea after following the procedures set forth in Fed.R.Crim.P. 11 but entered no judgment or final order. Count I was not dismissed at that time. In January 1980 defendant moved for dismissal of Count I for double jeopardy reasons.

Four days later the motion was denied, and trial was held to a jury on Count I, resulting in a verdict of guilty. The judge merged the verdicts based on the plea and the jury conviction, and gave one sentence of twenty years. This is the maximum allowable sentence under subsection (a), five years less than the maximum under subsection (d), but ten years in excess of that allowed by subsection (b). The issues we must decide are (1) whether bank larceny and bank robbery are the same offense in this context, and if so, (2) whether the trial on the bank robbery count violated the Double Jeopardy Clause.

The trial judge concluded that jeopardy had attached when he accepted the guilty plea on Count II, but he held that the offenses charged were not the same offense for double jeopardy purposes and thus no Fifth Amendment violation had occurred. Alternatively, he held that defendant’s actions of pleading guilty to one charge in a two-count indictment caused a bifurcated prosecution, and double jeopardy does not bar “successive prosecutions” in that context. We affirm the ultimate finding that the conviction does not offend the Double Jeopardy Clause, but our reasoning differs somewhat from that of the trial court.

I The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy.” The threshold inquiry is whether the offense to which the plea of former jeopardy is asserted is the same offense to which Combs had previously pleaded guilty. The trial court here concluded bank larceny and bank robbery are not the same offense for double jeopardy purposes, reasoning first that bank larceny requires proof of the specific intent to steal or purloin, while bank robbery requires only general intent.

Second, recognizing that offenses may be the same for constitutional purposes, although they are not technically greater and lesser included offenses, see Brown v. Ohio, 432 U.S. 161, 164, 166-67 n.6, 97 S.Ct. 2221, 2224, 2225-2226 n.6, 53 L.Ed.2d 187 (1977), the court applied the test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and found the offenses charged here were not the same. We do not agree. Bank, robbery and bank larceny as proscribed in 18 U.S.C. §§ 2113(

a) and (

b) are lesser and greater forms of the same offense and hence may not be the basis of cumulative punishment. United States v. Leyba, 504 F.2d 441 (10th Cir. 1974), cert. denied, 420 U.S. 934, 95 S.Ct. 1139, 43 L.Ed.2d 408 (1975) (separate penalties under 18 U.S.C. §§ 2113(a), (

b) and (

d) improper, whether imposed consecutively or concurrently). See also Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Kienlen v. United States, 379 F.2d 20, 23 (10th Cir. 1967). Although the specific offenses before the Supreme Court in Prince were unlawful entry and robbery, the Court considered the question as it involved robbery and larceny, 352 U.S. 327, n.7, 77 S.Ct. 406 n.7.

The Court determined that the purpose of Congress in enacting 18 U.S.C. § 2113 was to establish lesser offenses in the Act but not to pyramid the punishment of the offenses and thus held cumulative punishment for those offenses is forbidden. When offenses are the same for purposes of barring consecutive sentences, “they necessarily will be the same for purposes of barring successive prosecutions.” Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977). Therefore, the offenses charged in the indictment against Combs are the same offense for purposes of double jeopardy analysis.

II We now must consider defendant’s claim that the trial court’s failure to dismiss Count I following its acceptance of the guilty plea on Count II, but. before judgment and sentencing, resulted in defendant being twice placed in jeopardy for the same offense. The Double Jeopardy Clause prohibits multiple punishment for the same offense and successive prosecution after either an acquittal or a conviction for the same offense. Illinois v. Vitale, - U.S. -, -, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1976).

No multiple punishment problem is presented in this case because at the end of trial, the judge merged the guilty plea and the jury verdict and imposed a single sentence. See Green v. United States, 365 U.S. 301, 305-06, 81 S.Ct. 653, 655-656, 5 L.Ed.2d 670 (1961) (formal defect of sentencing on lesser offense under 18 U.S.C. § 2113 did not exhaust trial judge’s power to sentence on aggravated bank robbery charge). The principles prohibiting successive prosecutions embody “a constitutional policy of finality for the defendant’s benefit,” United States v.

Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion), that “serves principally as a restraint on courts and prosecutors.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). This policy prohibits the government from relitigating a prior acquittal. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Green v. United States, 355 U.S. 184, 190 n.11, 78 S.Ct. 221, 225 n.11, 2 L.Ed.2d 199 (1957). Furthermore, it protects a defendant from attempts to relitigate a prior conviction for the same offense. Brown v.

Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); In re Nielson, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889). Accordingly, a prosecutor dissatisfied with a sentence cannot reinstitute charges against the defendant in an attempt to achieve what the prosecutor believes to be a more “just” punishment. See generally Twice in Jeopardy, 75 Yale L.J. 262, 262-67, 277-83 (1965). In the instant case, we face the question whether the trial on Count I after the guilty plea on Count II was an impermissible second prosecution.

Because we agree with the government’s contention that the acceptance of the plea and the trial constituted only one criminal prosecution, we find no violation of the guarantee against successive prosecution. Defendant was charged in a single indictment; although he pleaded guilty to the lesser charge, judgment and sentencing were deferred until after trial. See United States v.

Goldman, 352 F.2d 263, 266 (3d Cir. 1965) (court’s acceptance of defendant’s change of plea to guilty on one of two counts during trial was not a judgment and continuation of trial did not violate the Double Jeopardy Clause); United States v. Scarlata, 214 F.2d 807 (3d Cir. 1954) (dismissing both statutory claim and double jeopardy claim that prosecution was barred by prior guilty plea on which no judgment had been entered).

The trial court did not dismiss the bank robbery count when it accepted the plea to the bank larceny count, and the record shows that the parties, as well as the court, believed the bank robbery count remained alive. We believe the acceptance of the plea constituted neither an acquittal on the bank robbery count nor termination of the trial process. Defendant was entitled to request withdrawal of his plea. Fed.R.Crim.P. 32(d). See Kienlen v. United States, 379 F.2d 20 (10th Cir. 1967).

The court could have withdrawn the plea even over an objection by defendant upon determining that there was no factual basis for it. Fed.R.Crim.P. 11(f). Until entry of judgment and sentencing on the accepted guilty plea, defendant had not been formally convicted. See High v. United States, 288 F.2d 427 (D.C. Cir.), cert. denied, 366 U.S. 923, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961). But see United States v. Rocco, 397 F.Supp. 655 (D.Mass. 1975) (holding jeopardy attaches when the guilty plea is accepted). Although defendant’s plea terminated one-half of the inquiry, it did not terminate the trial.

The judge accepted defendant’s plea but deferred judgment until after the full trial. Thus, defendant was required to prepare for and participate in a single trial. Defendant candidly concedes the plea on Count II was given to avoid trial and to lay a foundation for raising a double jeopardy defense. Defendant asserts he was entitled to plead guilty to bank larceny and end the prosecution because the offenses were set forth in separate counts, even though he would not have been able to so plead had both offenses been placed in a single count. See United States v.

Gray, 448 F.2d 164 (9th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972). We see no constitutional principle that suggests the manner of pleading a single indictment should affect the question of double jeopardy. See United States v. Goldman, 352 F.2d 263 (3d Cir. 1965). The fact that Goldman involved a plea of guilty to one of two counts during the course of trial is not a basis for distinguishing it from the present case. For these reasons, the judgment is AFFIRMED. . 18 U.S.C. § 2113 provides in pertinent part as follows: (

a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or ány savings and loan association; Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both. (

b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; (

d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (

a) and (

b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both. . At the plea hearing, defendant’s counsel advised the court that there was no plea bargain with the prosecution. He then stated, “My client has chosen to plead guilty to Count II, and that does not dispose [of] Count I.” Defendant-affirmed to the court that this statement was correct. . This decision is in no way contrary to Kercheval v.

United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). In that case, the Supreme Court contrasted a guilty plea to other admissions against interest, holding that a guilty plea may not be admitted into evidence after a court has allowed its withdrawal. Central to the decision is the conclusiveness of the plea as an evidentiary matter. As evidence of the conclusive nature of a plea, the Court noted that a defendant may be bound by his admission in a guilty plea. This fact does not, however, mean that acceptance of the plea without more binds the court to terminate the trial at that point. -